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Here are four other possible definitions that are more susceptible to thoughtful examination during the confirmation process:

Striking down arguably constitutional laws. Most agree that courts properly exercise the power of judicial review to invalidate laws that violate the Constitution. But when is it appropriate to subvert majority will and strike down a law? When it’s a close case, should the law stand or fall? Which laws get the benefit of the doubt? Judges and legal scholars have wrestled with these problems for ages. There are no easy answers, but this definition is a good starting point for a substantive conversation.

Ignoring judicial precedent. Perched atop the judicial hierarchy and granted life tenure, Supreme Court justices have few checks on their powers. One check lies in prior Supreme Court opinions. How much weight do these precedents deserve? When is it appropriate to overrule them? When should a dissenting justice concede defeat and begin applying a precedent he or she disagrees with? The Supreme Court is all over the map on these important questions.

Judicial “legislation.” Judges are often admonished to interpret the law, rather than “legislate from the bench.” That’s a nice sound bite, but it glosses over some of the most difficult and important issues facing judges today. How should judges interpret broad phrases of the Constitution like “freedom of speech,” “cruel and unusual punishment” and “equal protection of the laws”? When does the government deprive people of life, liberty and property without “due process of law”? How should judges enforce structural aspects of the Constitution, such as the separation of powers? These questions are at the heart of the judicial craft.

Employing an illegitimate method of interpretation. There are about as many theories of constitutional interpretation as there are judges. The current Supreme Court includes self-described “originalists,” “minimalists” and proponents of “active liberty,” to name a few. From the president’s recent comments, it seems the next member may have “empathy.” Then there are more specific interpretive issues. Should judges focus exclusively on a law’s text? What about the law’s purpose, structure and legislative history? Are any other considerations appropriate? Theories of interpretation can be abstract and complex, but they say a lot about how judges will perform on the bench.

Understanding a nominee’s judicial philosophy is hard work, but it should be the goal of the confirmation process. Amorphous charges of “judicial activism” score cheap political points, but they have no place in a serious confirmation debate. Let’s banish the term or at least use it carefully.

Keenan Kmiec, a lawyer at Sidley Austin in Washington, clerked for Chief Justice John Roberts. He wrote a study of the term “judicial activism” for the California Law Review.

Readers' Comments (39)

Every justice is a judicial activist, because they have their own schools of thought on how the Constitution should be interpreted. The biggest activists on the Supreme Court are Scalia and Thomas because they have pushed to mold America into a right-wing theocracy far more than any supposed liberal justice has tried to make America more liberal.

What don't we need from Obama? Another Breyer! Here's why: To those of us suffering under the delusion that the Constitution was supposed to "secure the Blessings of Liberty," Breyer reveals that its purpose was "to create a framework for democratic government -- a government that, while protecting basic individual liberties, permits citizens to govern themselves." But how can it protect "individual liberties" when such protection is precisely what doesn't allow "citizens to govern themselves"? Or is "basic" actually Breyerspeak for as few as possible? At this point a certain feeling may be creeping over many, an eerie kind of deja vu. It grows only stronger when Dionne reclaims the mic. "Breyer's argument," he explains, "leads not to judicial activism but to judicial humility. He insists that courts take care to figure out what the people's representatives intended when they passed laws. You might say that justices should not behave like imperious English professors who insist they can interpret the true meaning of words better than those who actually wrote them." Now that tore away the disguise, didn't it? This isn't the "living document"/"evolving Constitution" rhetoric that the Left's been blaring all these years. The exalting of majoritarian democracy over individual liberty, the insistence that this view reflects the "intentions" of the Framers of the Constitution -- who can mistake it? Who can still not see that behind the meek figure of Stephen Breyer looms -- as his alter ego -- the monstrous presence of ... READ THE ENTIRE ARTICLE.

Of course it is a bad expression, but the more appropriate ones for liberal judges that re-write legislation from the courtroom bench in order to meet contemporary political correctness notions of the day are usually not printable or spoken in polite company.

You have written a concise and fair treatment of the phrase "judicial activism"; one that partisans of all stripes should read prior to the upcoming SCOTUS fracas. Bravo for so eloquently stating the case that the protection of the Constitution does indeed trump political ambition, and that confirmations should be about substance rather than style.

BS RObamadan. The term judicial activist does not have such a clearly defined meaning. I don't dispute that some people would define it the way you do. But the author's point is that not everyone defines it that way--for some, judicial activist is simply a synonym for judge-who-rules-in-ways-I-don't-like. For others, it's judges who ignore precedent. For others, it's anyone who supports flexible balancing tests over bright line rules. The author simply requests that people stop using this term and say what you really mean. And you give a clear, concise definition of what you don't want to see judges do. So just say that, and don't call it judicial activism because the term is meaningless.

The author is right in saying that essentially "judicial activism" is in the eye of the beholder. RO says activism is a court that holds people are truly equal under the constitution and allows gay marriage, because RO disagrees with that interpretation. Another might feel activism was SCOTUS stepping into a state election issue in Gore v. Bush, adding a line to their decision that their decision could not be used as a precedent. The term is meaningless.

Then again, what terms do carry meaning these days? The Federalists believe in "state's rights" until the states vote in favor of medical marijuana, assisted suicide and other issues they don't like. Then suddenly the states should not be allowed to trump Federal laws.

In the Iowa case, the Court created a new law. They have no authority to create a new law. Regardless as to whether or not I agree with the decision, the Iowa SC had no authority to create a new marriage statute as they did. That is judicial activism. That authority belongs solely to the people and to the elected representatives of the people.

I've always thought judicial activism was the name the losing side called the judge. I took the Texas Ten Commandments case to the Supreme Court a few years ago. I lost. I lost 5-4 because of Justice Breyer. I called him lots of names and activist was probably one.

Mainly, I think the term is used by the right-wing in response to the finding of a right to privacy in the question of a woman's right to an abortion. You're right, it's mostly meaningless and ought to be dropped. I don't often if ever hear lawyers use it.

Let's be honest, there are no "strict constructionist" justices on the Supreme Court, only those with varying interpretations of the Constitution. Those who call for strict construction should be careful what they wish for.

The Constitution prohits cruel and unusual punishment. Killing someone is the cruelest punishment, and the extent to which it is imposed makes it remarkably unusual in its application compared to other penalties. A strict constructionist would, therefore, conclude that capital punishment is unconstitutional. The Supreme Court has, for decades, circumvented the argument by focusing on the cruelty of the means of death, rather than death itself....interpretation!

Freedom of speech and of the press, if taken literally, would find unconstitutional laws against the possession and distribution of child pornography. The abuse of children could be prosecuted, but not the viewing or distribution of materials depicting it.

Similarly laws restricting the private ownership of certain arms like bombs, RPG's, chemical weapons and others would not withstand constitutional scrutiny. Imagine the terrorism nightmare that would be created by strict construction of the Constitution.

Yes, the examples are extreme, but used to make a point. Strict construction, if you really mean strict construction, is not a serious option. You are then left with the proposition that all Justices are interpreters, i.e. activist in their reading of the Constitution, just with varying interpretations.

I've always thought judicial activism was the name the losing side called the judge. I took the Texas Ten Commandments case to the Supreme Court a few years ago. I lost. I lost 5-4 because of Justice Breyer. I called him lots of names and activist was probably one.

Thank you for wasting the people's time and money with your pettiness.

A great many cases brought to the various supreme courts dealing in these areas should simply be remanded. Judicial activists are often all too eager to sow seeds in fields they don't own and have not ploughed.

Thank you for wasting the people's time and money with your pettiness.

RObamadan, Van Orden v Perry generated lots of interest. More the 50 amicus briefs were filed on each side. Those supporting me came from the Christian/Jewish Studies Department at Boston College, the Anti-Defemation League, American Jewish Congress, Baptist Joint Committee, Hindu/Buddhist American Society, most of the religious interests but for Christian fundamentalists. 50 or more briefs from diverse interests were filed in support of Texas. In all of that, I don't recall anyone characterizing the questions raised as "petty". Could be you don't understand the case was a political question masquarading as a lawsuit: What is the proper relationship between government and religion in America. The Founders were so concerned with that question that they put in first among the Bill of Rights. If you see the case as about the Ten Commandments or the monument, you need to look deeper.

There is nothing as murky as a pseduo intellectral.....explaining his wisdom...which is far greater than the dead old white men who framed the United States Constitution. adnausem.

AN EXAMPLE OF JUDICAL ACTIVISM....DIANE WOOD..RUMORED TO BE OUR NEXT SP JUDGE...SAID...AT THE AMERICAN ISRAEL POLITICAL ACTION COMMITTEE ON IMMIGRATION AND CITIZENSHIP....AND IT WAS BROADCAST ON CPSAN ONE...SO IT IS ON TAPE...

WHEN QUESTIONED ABOUT BORDERS..WHO COMES TO THE USA....JUDGE WOOD..REPLIES. AND I PARAPHRASE...iF WE JUST LET EVERONE WHO WANTS TO COME TO THE USA AND WORK..ENTER...THEN SOON ALL OF THE JOBS WOULD BE GONE AND THEY WOULD NOT COME ANYMORE.

SO SINCE JUDGE WOOD...CONSIDERS THE USA TO BE A SORT OF DEPARTMENT STORE...AND SHE RULES THAT BORDERS AND CITIZENSHIP ARE OBSOLETE..................OR STRIKES DOWN ALL IMMIGRATION LAWS..WHICH I BELIEVE SHE IS ON RECORD PROMISING TO DO..................

I WOULD CONSIDER THAT JUDICIAL ACTIVISM.

AND WHEN THE HISPANIC WOMAN CHOICE..JUDGE SONYA SODAMAYER (SP) .( SHE IS TWO FOR ONE..DIVERSITY WISE IN RACE OBSESSED WASHINGTON). .IS AGAIN CAUGHT ON TAPE...AT A JUDICIAL HEARING...AGAIN I AM PARAPHRASING BUT IT IS ON TAPE AND HAS BEEN WIDELY SHOWN ON TV...

THAT THEY SHOULD JUST QUIT PRETENDING THAT THEY ARE INTEREPTING THE CONSITUTION AND ARE INSTEAD MAKING NEW LAWS THAT THEY LIKE........

Question: Was Brown v. Board of Education, overturning the doctrine of separate but equal, judicial activism or a justifiable reading of the equal protection clause? And, what about the remedies prescribed by the Court?